Right to Travel

DESPITE ACTIONS OF POLICE AND LOCAL
COURTS, HIGHER COURTS HAVE RULED THAT AMERICAN CITIZENS HAVE A RIGHT TO
TRAVEL WITHOUT STATE PERMITS

By Jack McLamb
(from Aid & Abet Newsletter)

For years professionals within the
criminal justice system have acted on the belief that traveling by motor
vehicle was a privilege that was given to a citizen only after approval by
their state government in the form of a permit or license to drive. In
other words, the individual must be granted the privilege before his use
of the state highways was considered legal.

Legislators, police officers, and
court officials are becoming aware that there are court decisions that
disprove the belief that driving is a privilege and therefore requires
government approval in the form of a license. Presented here are some of
these cases:

"The
right of a citizen to travel upon the public highways and to
transport his property thereon in the ordinary course of life and
business is a common right which he has under his right to enjoy
life and liberty, to acquire and possess property, and to pursue
happiness and safety. It includes the right in so doing to use the
ordinary and usual conveyances of the day; and under the existing
modes of travel includes the right to drive a horse-drawn carriage
or wagon thereon, or to operate an automobile thereon, for the usual
and ordinary purposes of life and business. It is not a mere
privilege, like the privilege of moving a house in the street,
operating a business stand in the street, or transporting persons or
property for hire along the street, which a city may permit or
prohibit at will."
[Thompson v. Smith, 155 Va.
367,154 SE 579
(1930)]

It could not be stated more directly or
conclusively that citizens of the states have a common law right to
travel, without approval or restriction (license), and that this right is
protected under the U.S Constitution.

"The right to travel
is a part of the liberty of which the citizen cannot be deprived
without due process of law under the Fifth Amendment."
[Kent v.
Dulles, 357 U.S. 116, 125 (1958)]

"The
right to travel, to go from place to place as the means of
transportation permit, is a natural right subject to the rights of
others and to reasonable regulation under law. A restraint imposed
by the Government of the United States upon this liberty, therefore,
must conform with the provision of the Fifth Amendment that ‘No
person shall be * * * deprived of * * * liberty * * * without due
process of law’."
[Schactman v. Dulles, 96 App DC 287, 225 F.2d 938,
at 941]

As hard as it is for those of us in law
enforcement to believe, there is no room for speculation in these court
decisions. American citizens do indeed have the inalienable right to use
the roadways unrestricted in any manner as long as they are not damaging
or violating property or rights of others.

Government -- in requiring the
people to obtain drivers licenses, and accepting vehicle inspections and
DUI/DWI roadblocks without question -- is restricting, and therefore
violating, the people's common law right to travel.

Is this a new legal interpretation
on this subject? Apparently not. This means that the beliefs and opinions
our state legislators, the courts, and those in law enforcement have acted
upon for years have been in error. Researchers armed with actual facts
state that case law is overwhelming in determining that to restrict the
movement of the individual in the free exercise of his right to travel is
a serious breach of those freedoms secured by the U.S. Constitution and
most state constitutions.

That means it is unlawful.

The revelation that the American
citizen has always had the inalienable right to travel raises profound
questions for those who are involved in making and enforcing state laws.

The first of such questions may very
well be this: If the states have been enforcing laws that are
unconstitutional on their face, it would seem that there must be some way
that a state can legally put restrictions -- such as licensing
requirements, mandatory insurance, vehicle registration, vehicle
inspections to name just a few -- on a citizen's constitutionally
protected rights. Is that so?

For the answer, let us look, once
again, to the U.S. courts for a determination of this very issue.

In Hertado v. California, 110 US
516, the U.S Supreme Court states very plainly: "The state cannot
diminish rights of the people."

And in Bennett v. Boggs, 1 Baldw
60, "Statutes that violate the plain and obvious principles of
common right and common reason are null and void."

Would we not say that these judicial
decisions are straight to the point-- that there is no lawful method for
government to put restrictions or limitations on rights belonging to the
people?

Other cases are even more straight
forward:

". . the assertion of federal
rights, when plainly and reasonably made, is not to be defeated under
the name of local practice." [Davis v. Wechsler, 263 US 22, at 24
(1923)]

"Where rights secured by
the Constitution are involved, there can be no rule making or
legislation which would abrogate them."
[Miranda v. Arizona, 384
US 436, 491 (1966)]

"The claim and exercise of
a constitutional right cannot thus be converted into a crime."
[Miller
v. U.S., 230 F.2d 486, at 489 (1956)]

".
. .there can be no sanction
or penalty imposed upon one because of his exercise of constitutional
rights."
[Sherar v. Cullen, 481 F.2d 946 (1973)]

We could go on, quoting court decision
after court decision; however, the Constitution itself answers our
question - Can a government legally put restrictions on the rights of the
American people at anytime, for any reason?

The answer is found in Article Six
of the U.S. Constitution:

"This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof;...shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or
laws of any State to the Contrary notwithstanding."

In the same Article, it says just who
within our government that is bound by this Supreme Law:

"The Senators and
Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the
United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution..."

Here's an interesting question. Is
ignorance of these laws an excuse for such acts by officials?

If we are to follow the letter of
the law, (as we are sworn to do), this places officials who involve
themselves in such unlawful acts in an unfavorable legal situation. For it
is a felony and federal crime to violate or deprive citizens of their
constitutionally protected rights. Our system of law dictates that there
are only two ways to legally remove a right belonging to the people.

These are (1) by lawfully amending
the constitution, or (2) by a person knowingly waiving a particular right.

Some of the confusion on our present
system has arisen because many millions of people have waived their right
to travel unrestricted and volunteered into the jurisdiction of the state.
Those who have knowingly given up these rights are now legally regulated
by state law and must acquire the proper permits and registrations.

There are basically two groups of
people in this category:

1) Citizens who involve themselves
in commerce upon the highways of the state.

Here is what the courts have said about
this:

"...For while a citizen has the
right to travel upon the public highways and to transport his
property thereon, that right does not extend to the use of the
highways...as a place for private gain. For the latter purpose, no
person has a vested right to use the highways of this state, but it
is a privilege...which the (state) may grant or withhold at its
discretion..." [State v. Johnson, 75 Mont. 240, 243
P. 1073 (1926)]

There are many court cases that confirm
and point out the difference between the right of the citizen to travel
and a government privilege and there are numerous other court decisions
that spell out the jurisdiction issue in these two distinctly different
activities. However, because of space restrictions, we will leave it to
officers to research it further for themselves.

(2) The second group of citizens
that is legally under the jurisdiction of the state are those citizens
who have voluntarily and knowingly waived their right to travel
unregulated and unrestricted by requesting placement under such
jurisdiction through the acquisition of a state driver's license,
vehicle registration, mandatory insurance, etc. (In other words, by
contract.)

We should remember what makes this
legal and not a violation of the common law right to travel is that they
knowingly volunteer by contract to waive their rights. If they were
forced, coerced or unknowingly placed under the state's powers, the courts
have said it is a clear violation of their rights.

This in itself raises a very
interesting question. What percentage of the people in each state have
applied for and received licenses, registrations and obtained insurance
after erroneously being advised by their government that it was mandatory?

Many of our courts, attorneys and
police officials are just becoming informed about this important issue and
the difference between privileges and rights.

We can assume that the majority of
those Americans carrying state licenses and vehicle registrations have no
knowledge of the rights they waived in obeying laws such as these that the
U.S. Constitution clearly states are unlawful, i.e. laws of no effect
-laws that are not laws at all.

An area of serious consideration for
every police officer is to understand that the most important law in our
land which he has taken an oath to protect, defend, and enforce, is not
state laws and city or county ordinances, but the law that supersedes all
other laws -- the U.S. Constitution. If laws in a particular state or
local community conflict with the supreme law of our nation, there is no
question that the officer's duty is to uphold the U.S. Constitution.

Every police officer should keep the
following U.S. court ruling --discussed earlier -- in mind before issuing
citations concerning licensing, registration, and insurance:

"The claim and exercise of
a constitutional right cannot thus be converted into a crime."
[Miller
v. U.S., 230 F.2d 486, at 489 (1956)]

And as we have seen, traveling freely,
going about one's daily activities, is the exercise of a most basic right.